United States Court of Appeals for the Federal Circuit
2007-3167
JULIE K. JOHNSTON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Jacob A. Kramer, Bryan Cave LLP, of Washington, DC, argued for petitioner.
With him on the brief was Daniel C. Schwartz.
Michael A. Carney, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, argued for respondent. With him on the brief
were B. Chad Bungard, General Counsel, and Rosa M. Koppel, Deputy General
Counsel.
Appealed from: Merit Systems Protection Board
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
2007-3167
JULIE K. JOHNSTON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Petition for review of the Merit Systems Protection Board in AT1221060983-W-1.
______________________
DECIDED: March 3, 2008
_______________________
Before NEWMAN, MAYER and GAJARSA, Circuit Judges.
MAYER, Circuit Judge.
Julie K. Johnston seeks review of a final decision of the Merit Systems Protection
Board dismissing her appeal for lack of jurisdiction. Johnston v. Dep’t of Energy,
AT-1221-06-0983-W-1 (M.S.P.B. Nov. 2, 2006). Because we conclude Johnston’s
allegations of reprisal for disclosures protected under the Whistleblower Protection Act
of 1989 (“WPA”), 5 U. S. C. § 2302(b)(8), were sufficient to establish board jurisdiction,
we reverse and remand.
Background
Johnston is employed as a Safety and Occupational Health Manager (“SOHM”)
in the Office of Secure Transportation of the National Nuclear Security Administration in
the Department of Energy (the “agency”). The agency’s mission is to safely transport
nuclear weapons and other nuclear materials. Agency employees are heavily armed
and trained to safeguard nuclear weapons from attack by terrorists and other criminals.
As a SOHM, Johnston has extensive safety training and experience. In January
2006, she became aware that her supervisors planned to implement Policy 7.04a, which
would take safety management responsibilities away from SOHMs and delegate them
to other agency employees, known as Command Safety Representatives (“CSRs”).
Johnston alleges that in January and February 2006, she “continually voiced to her
supervisor, Dean Triebel, her concerns that under [proposed Policy 7.04a] responsibility
for safety management would be delegated to personnel who lacked appropriate
education and experience in safety management.” On January 28, 2006, Triebel sent
an email asking Johnston and other employees to review proposed Policy 7.04a. In
response, on February 21, 2006, Johnston sent an email to Triebel and several others,
some of whom worked outside her branch of the agency, expressing her dissatisfaction
that under the proposed policy her job description and job responsibilities would be
changed. She also “question[ed] the legality and the ethics” of the proposed policy.
On February 24, 2006, Johnston had a meeting with Triebel and another
supervisor, Joseph Vigil. Johnston alleges that in this meeting she informed her
supervisors she intended to communicate her criticisms of the proposed policy to the
Department of Energy’s Office of Inspector General (“OIG”). Johnston further alleges
that her supervisors orally reprimanded her for voicing her concerns about proposed
Policy 7.04a, and told her that she had “damaged [her] reputation beyond repair” by
sending the February 21, 2006 email to persons outside her chain of command.
2007-3167 2
Soon thereafter, Johnston contacted the OIG, which summarized her disclosures
as follows:
Reliance on untrained safety personnel to review training lesson plans
could put [agency personnel] and personnel from other agencies at risk for
serious injury. [The agency] regularly conducts training exercises with
rigorous physical activities and often with live fire and explosives. Training
is conducted during periods of extreme heat and humidity, or exceptional
cold weather. Fog, dust, sleet, high winds, snowfall, or rainfall can impair
a trainee’s vision, footing, and ability to manipulate a weapon, creating a
potential safety hazard to both the trainee and those nearby. Additionally,
[agency employees] routinely conduct joint testing exercises with other
agencies, which add[s] to the complexity and safety hazards of the training
exercise. The serious injury that occurred in 2002 underlines the risk that
can arise from using untrained personnel to perform safety reviews.
Memorandum from Christine Shafik, Department of Energy Office of Inspections
and Special Inquiries (March 13, 2006) [hereinafter OIG Memorandum].
On March 1, 2006, Triebel issued a “counseling memorandum” to Johnston,
stating that she had “demonstrated inappropriate conduct by sending out an email
[regarding proposed Policy 7.04a] to members of [the agency] who were not associated
with the issues.” On March 15, 2006, Johnston received a revised performance plan.
She alleges that this revised plan substantially reduced her training and safety
management responsibilities and caused her to be “effectively demoted.”
Johnston subsequently filed a formal letter of complaint with the OIG, further
articulating her concerns regarding the dangers of the proposed policy. See Letter of
Complaint from Julie Johnston to the OIG (March 17, 2006) [hereinafter Letter of
Complaint]. In this letter, Johnston stated that “safety is not a popular sport . . . . [I]t is
not about being on the right team . . . . [I]t is about doing the right thing, even when it is
not the popular choice.” Id. at 2. She explained that she felt it was her “obligation . . .
as a safety professional” to move forward with her complaints about the agency’s plan
2007-3167 3
to delegate safety management responsibilities to personnel whom she believed lacked
adequate training and experience. Id.
Soon thereafter, Johnston filed a complaint with the United States Office of
Special Counsel, in which she alleged that accidents had occurred in training exercises
in November 2002, January 2003 and November 2004 because of “flaws in the risk
assessment procedures.” See Letter from Matthew C. Glover, U.S. Office of Special
Counsel (June 20, 2006) [hereinafter Special Counsel Letter]. After exhausting her
administrative remedies at the Office of Special Counsel, see 5 U.S.C. § 1214(a)(3),
Johnston appealed to the Merit Systems Protection Board, alleging that the agency had
retaliated against her for engaging in protected whistle-blowing activity. The
administrative judge dismissed her appeal for lack of jurisdiction, concluding that her
disclosures were not protected by the WPA because they did not identify a substantial
and specific threat to public safety. The administrative judge’s initial decision became
the final decision of the board on February 9, 2007. Johnston timely appealed to this
court; we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
Discussion
The board’s jurisdiction is not plenary, but is limited to those matters over which
it has been granted jurisdiction by law, rule or regulation. Herman v. Dep’t of Justice,
193 F.3d 1375, 1378 (Fed. Cir. 1999). Whether the board has jurisdiction over an
appeal is a question of law that this court reviews de novo. Yates v. Merit Sys. Prot.
Bd., 145 F.3d 1480, 1483 (Fed. Cir. 1998); Fields v. Dep’t of Justice, 452 F.3d 1297,
1301 (Fed. Cir. 2006).
2007-3167 4
Johnston argues that the board erred in dismissing her appeal; she contends she
established board jurisdiction by non-frivolous allegations that she suffered reprisal for
expressing her opinion that the agency’s implementation of Policy 7.04a would put
agency personnel and others at risk for serious injury. We agree.
There is a fundamental distinction between the requirements necessary to prevail
on the merits of a WPA claim and those sufficient to establish board jurisdiction. To
prevail on the merits, an employee must establish, by a preponderance of the evidence,
that a protected disclosure was a contributing factor in an adverse personnel action.
See Marano v. Dep’t of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993). At the jurisdictional
threshold, however, the employee’s burden is significantly lower: for individual right of
action appeals “the Board’s jurisdiction is established by nonfrivolous allegations that
the [employee] made a protected disclosure that was a contributing factor to the
personnel action taken or proposed.” Stoyanov v. Dep’t of the Navy, 474 F.3d 1377,
1382 (Fed. Cir. 2007) (citing Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1325
(Fed. Cir. 2006) (en banc)). Thus, Johnston could establish a jurisdictional predicate for
her claims by making non-frivolous allegations that: (1) her disclosures were within the
purview of the WPA, and (2) she suffered reprisal in the wake of these disclosures.
I. Protected Disclosures
The WPA protects several types of communications, one being a disclosure
regarding what an employee “reasonably believes” to be a “substantial and specific
danger to public health or safety.” 1 5 U.S.C. § 2302(b)(8); Herman, 193 F.3d at 1378-
1
The WPA prohibits taking any adverse personnel action because of “any
disclosure of information by an employee or applicant which the employee or applicant
reasonably believes evidences—(i) a violation of any law, rule, or regulation, or (ii) gross
2007-3167 5
79. Johnston alleges she made such a disclosure; we deem her allegations non-
frivolous.
The disclosures made by Johnston were precise and unambiguous: she asserted
that using inadequately trained personnel to review agency training exercises would
increase the danger of serious injury to those conducting the exercises as well as others
in the vicinity. Training exercises are designed to simulate attacks on nuclear weapons
by terrorists and other criminals, and Johnston explained that they routinely involve the
use of live fire and explosives. She further explained that training activities frequently
take place under extreme weather conditions where “[f]og, dust, sleet, high winds,
snowfall, or rainfall can impair a trainee’s vision, footing, and ability to manipulate a
weapon, creating a potential safety hazard to both the trainee and those nearby.” OIG
Memorandum at 2. In addition, Johnston noted that agency employees “routinely
conduct joint testing exercises with other agencies, which add[s] to the complexity and
safety hazards of the training.” Id. She buttressed her claims regarding the dangers
inherent in training activities by referring to a series of accidents, some of them serious,
which had occurred during such activities in the past. Id.; Special Counsel Letter at 2.
Johnston disclosed a very specific and substantial danger—that agency
employees and others in the vicinity could suffer serious injury if inadequately trained
personnel were charged with responsibility for managing training activities. Her beliefs
were objectively reasonable, not only because training exercises take place under
extreme weather conditions and routinely involve the use of live fire and explosives, but
mismanagement, a gross waste of funds, an abuse of authority, or a substantial and
specific danger to public health or safety . . . .” 5 U.S.C. § 2302(b)(8)(A).
2007-3167 6
also because a series of accidents had occurred during such exercises in the past. 2
See LaChance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999) (the standard for
determining whether an employee’s beliefs are reasonable under the WPA is an
objective one). It is important to note, moreover, that Johnston expressed her fears not
only to her immediate supervisors, but also made very detailed disclosures regarding
her safety concerns to her agency’s Office of Inspector General. See Willis v. Dep’t of
Agric., 141 F.3d 1139, 1143 (Fed. Cir. 1998) (no protection under the WPA when
disclosures were not made to “authorities who were in a position to correct the alleged
wrongdoing”).
Johnston’s disclosures are not the sort of vague, conclusory or facially
insufficient allegations of government wrong-doing that fail to provide an adequate
jurisdictional predicate under the WPA. See Herman, 193 F.3d at 1380-81 (board had
no jurisdiction under the WPA for the disclosure of “trivial” violations of agency rules);
Fields, 452 F.3d at 1304 (board had no jurisdiction under the WPA where a disclosure
“was simply a chronology of events that did not contain any allegation of wrongdoing”).
To the contrary, her allegations involve the sort of detailed and facially well-supported
disclosures that have been deemed sufficient to support board jurisdiction. See Reid v.
Merit Sys. Prot. Bd., 508 F.3d 674 (Fed. Cir. 2007) (jurisdiction established where
employee had a “reasonable belief” that a potential violation of law could occur even
2
The government argues that Johnston waived her right to present evidence
about prior accidents because she failed to present arguments regarding such
accidents to the board. The government’s contentions are unpersuasive. The prior
accidents were discussed in the OIG Memorandum and the Special Counsel Letter,
both of which were attached as exhibits to Johnston’s initial appeal. Indeed, the
administrative judge referred to the OIG Memorandum several times in her initial
decision. See Johnston, slip. op. at 3-5.
2007-3167 7
where the violation never actually occurred); Yunus v. Dep’t of Veterans Affairs, 242
F.3d 1367, 1372 (Fed. Cir. 2001) (allegations were “facially sufficient” to establish
jurisdiction where factual underpinnings of claim were “not frivolous”); see also Eidmann
v. Merit Sys. Prot. Bd., 976 F.2d 1400, 1406-07 (Fed. Cir. 1992) (employee “reasonably
believed” his agency violated a no-smoking ban where regulations prohibited smoking in
public areas).
II. Distinction between Substantive and Jurisdictional Determinations
In dismissing Johnston’s claims, the board erroneously conflated the
requirements for establishing jurisdiction with those required to prevail on the merits of a
WPA claim. See Spencer v. Dep’t of the Navy, 327 F.3d 1354, 1356 (Fed. Cir. 2003)
(“This court for more than ten years . . . has tried to get the Board to clearly separate the
issue of jurisdiction from that of the merits of a petitioner’s case.”); Spruill v. Merit Sys.
Prot. Bd., 978 F.2d 679, 686-89 (Fed. Cir. 1993) (contrasting jurisdiction with failure to
state a claim and relating the nonfrivolous allegation standard to the well-pleaded
complaint rule). The board premised its jurisdictional determinations on its conclusion
that the “general tenor of [Johnston’s] communications appears to be disagreement with
the agency’s decision to strip her of duties and to put her at the same level as others
she deems less qualified in safety matters.” Johnston, slip op. at 5.
There are two reasons why this determination was wrong. First, while
Johnston’s February 21, 2006, email to her supervisor focuses primarily on the fact that
her own job description was being changed, her disclosures to the OIG contained
detailed information regarding her concerns that proposed Policy 7.04a would delegate
2007-3167 8
safety management responsibilities to unqualified personnel, thereby putting agency
personnel and others at risk for serious injury. See OIG Memorandum at 1-2.
Second, and more importantly, Johnston’s motivation for making her disclosures
and her credibility are related to the merits of her claim, not to whether she made
allegations sufficient to support board jurisdiction. See LaChance, 174 F.3d at 1381
(bias or self-interest may be considered when adjudicating the merits of a WPA claim).
It may be true that Johnston’s communications primarily involve dissatisfaction with her
job assignments, and that she may be unable to establish, by a preponderance of the
evidence, that she suffered reprisal for any protected disclosure. It is also possible that
the agency can defeat her claims by showing, by clear and convincing evidence, that it
would have taken adverse personnel actions against her even absent any protected
disclosures. See Marano, 2 F.3d at 1141 (once an employee has established the
existence of a personnel practice prohibited by the WPA, “the burden then shifts to the
agency to demonstrate by clear and convincing evidence that it would have taken the
same personnel action against the whistleblower even in the absence of his protected
disclosure”). Whether she will ultimately be able to prevail on the merits, however, is a
wholly separate issue from whether the board had jurisdiction over her appeal. See Bell
v. Hood, 327 U.S. 678, 682 (1946) (claims regarding jurisdiction cannot be defeated by
the possibility that the plaintiffs may not ultimately recover); see also Patterson v. Dep’t
of the Interior, 424 F.3d 1151, 1160 (Fed. Cir. 2005).
On appeal, the government acknowledges that an “employee is entitled to a
hearing if she presents a non-frivolous allegation that the Board has jurisdiction over her
[claims].” Respondent Brief at 11. It contends, however, that Johnston’s allegations are
2007-3167 9
frivolous because it was “unreasonable” for her to believe that it was dangerous to
employ CSRs, rather than SOHMs, to review agency training exercises. In support, it
points out that CSRs would be given training and would be supervised by a CSR team
leader.
This argument misses the mark. Johnston asserted that SOHMs have far more
safety expertise than CSRs, and she was not required to prove conclusively that CSRs
were incapable of properly reviewing training activities in order to establish board
jurisdiction. On the contrary, under the WPA, “whether [an] allegation can be proven is
a question on the merits that does not properly form a part of the jurisdictional inquiry.”
Reid, 508 F.3d at 678; Greenspan v. Dep’t of Veterans Affairs, 464 F.3d 1297, 1305
(Fed. Cir. 2006) (government doctor reasonably believed his disclosures evidenced
misconduct, even when others at his agency thought his allegations were “unfounded”).
Indeed, since Johnston’s appeal was dismissed before she was given access to the
agency’s file on her case or provided with an opportunity to conduct discovery, it would
have been well-nigh impossible for her to prove that CSRs lacked the requisite training
and experience to safely review training activities.
There are few areas more fraught with potential peril to public safety than the
transport of nuclear weapons. Johnston has been employed for several years as a
safety and health expert at the agency charged with transporting the nation’s nuclear
stockpile, so it takes more than the government’s mere contention that her allegations
regarding safety issues are “frivolous” to dismiss at the jurisdictional stage of the
proceedings.
2007-3167 10
III. Reprisal
As noted, to carry her jurisdictional burden Johnston was required to make non-
frivolous allegations not only that she made a protected disclosure, but also that such
disclosure was a contributing factor in the agency’s decision to take adverse personnel
actions against her. Neither the administrative judge nor the board addressed whether
she made non-frivolous allegations that her disclosures were contributing factors in any
adverse personnel actions. Nor does the government address the issue here.
This court has made clear that a “whistleblower need only allege that the
‘deciding official knew of the disclosure’ and that the adverse action ‘was initiated within
a reasonable time of that disclosure’ in order to make a prima facie case that the
disclosure was a contributing factor in the adverse action.” See Reid, 503 F.3d at 678
(citing 5 U.S.C. § 1221(e)(1)); see also Marano, 2 F.3d at 1142. Because Johnston
alleges that she “was subjected to a reduction in her job responsibilities and [issued] a
disciplinary memorandum just days after making her disclosures to the OIG,” Petitioner
Brief at 12 n.3, we see her allegations that her disclosures contributed to the agency’s
actions as non-frivolous. 3
The board’s jurisdiction does not normally extend to personnel decisions such as
reductions in job responsibilities. See, e.g., Knollenberg v. Merit Sys. Prot. Bd., 953
3
In an affidavit submitted to the board, Johnston states that she informed her
supervisor, Triebel, that she was going to voice her safety concerns to the OIG shortly
before she received the counseling memorandum and change in job responsibilities.
Triebel, however, submitted an affidavit stating that he had no knowledge of the
contents of Johnston’s disclosure to the OIG when he issued the counseling
memorandum. On remand, the board will have the opportunity to evaluate the
evidence, make credibility determinations and ascertain whether Johnston’s supervisors
were aware of the contents of her disclosures to the OIG at the time the adverse
personnel actions were undertaken.
2007-3167 11
F.2d 623, 625 (Fed. Cir. 1992). Under the WPA, however, a very broad class of
personnel actions falls within the board’s jurisdiction. Ruggieri v. Merit Sys. Prot. Bd.,
454 F.3d 1323, 1325 (Fed. Cir. 2006). Thus, changes in work duties and disciplinary
action are personnel actions that are within the Board’s jurisdiction if they resulted from
disclosures protected by the WPA. 5 U.S.C. § 2302(a)(2); Reid, 508 F.3d at 678. 4
Conclusion
Accordingly, the decision of the Merit Systems Protection Board is reversed,
and the case is remanded for further proceedings consistent with this opinion.
COSTS
Costs to petitioner.
REVERSED AND REMANDED
4
At oral argument, counsel for Johnston stated that if she prevails in her WPA
claim she seeks to “have her record cleared” by having the counseling memorandum
she received after making her disclosures removed from her supervisory employee file.
She also seeks to compel the agency to either: (1) give her back the job responsibilities
she had prior to her disclosures, or (2) reassign her to another position at the agency to
“escape the impact her disclosures” have had on her career.
2007-3167 12